Anthony Aust. Handbook of International Law
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2001.
29. See www.un.org/terrorism/.
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Definition of the offences
Although the conventions require implementation by domestic legislation for the offences
formulated by them, since most of the offences will already be crimes under existing law (murder,
causing explosions, kidnapping, etc.), the provisions on jurisdiction and cooperation are the most
valuable. The offences include attempts and being an accessory. Beginning with the Bombings
Convention, the concept of conspiracy was added. The Financing Convention made a clearer
distinction between the civil law concept of association malfaiteur and the similar common law
concept of conspiracy.
30
The essential principle on which the conventions rest is that an alleged offender should not find
safe haven in the territory of any party. This is done by the establishment of quasi-universal
jurisdiction
31
and the so-called extradite or prosecute rule.
Quasi-universal jurisdiction
The effect of each convention is to create, as between its parties, a regime of universal jurisdiction.
Since not all states are parties – although the Hijacking Convention 1970 now has 178 parties – the
regime is described as ‘quasi-universal jurisdiction’. Each party has to establish its jurisdiction over
the offences, not only if they are committed in its territory or by one of its nationals or have another
connection with it (such as having been committed on board a vessel flying the party’s flag or an
aircraft registered with it). It is enough that an alleged offender is found in the territory of the party.
Even if neither the crime, nor the alleged offender, has any connection with that party, it must
nevertheless be able legally to detain him.
Starting with the Rome Convention 1988, a party is also given discretion to establish its
jurisdiction if the offence is committed abroad but against one of its own nationals or the state itself.
This power had to be given by treaty since many states do not accept the ‘passive personality’ or
‘protective’ principles.
32
30. See Article 2(5)(c), which was taken from Article 25(3)(a) of the Statute of the International Criminal
Court, 2187 UNTS 90 (No. 38544); ILM (1998) 998; UKTS (2002) 35.
31. See p. 45 above.
32. See p. 45 above. A similar, but non-discretionary, provision is to be found in Article 5(1)(c) and (d) of
the Hostages Convention 1979 (n. 23 above).
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‘Extradite or prosecute’
The detaining state might not extradite the alleged offender to another party. There can be many
reasons: he may be one of its own nationals and its law prohibits their extradition; the state may not
have confidence in the fairness of the other legal system; or it may not trust the other state to
prosecute diligently.
33
If it does not extradite, it is under an obligation ‘without exception
whatsoever and whether or not the offence was committed in its territory, to submit the case to its
own authorities for the purpose of prosecution’. This principle (worded the same in all ten
conventions) of aut dedere aut judicare (extradite or prosecute) is essential for the effectiveness of
the conventions: there is to be no hiding place in the territory of any of the parties for persons
accused of terrorism. The requirement is not to prosecute but ‘to submit the case to its own
authorities for the purpose of prosecution’. There is no obligation to prosecute whatever the
circumstances; there may not be sufficient evidence.
A party must investigate any allegation that there is a person in its territory who has committed
the offence and, if the circumstances so warrant, ensure the person’s presence for the purpose of
extradition or prosecution. There is no provision as to which state has priority of jurisdiction,
although in practice the state that has custody of the alleged offender has the first option to
prosecute.
34
Extradition
If the crime was committed in the territory, or on a ship or aircraft, of another party, there is of
course an important forensic advantage in sending the alleged offender for trial in the place where
many of the witnesses are and the evidence is likely to have been collected. The conventions
therefore deem the offences extraditable under existing extradition treaties (including multilateral
treaties), and the parties undertake to include the offences in every future extradition treaty. As
between parties that do not require a treaty for the purpose of extradition, the conventions provide
that, subject to the law of the requested party, the parties shall recognise the offences as extraditable.
Data on extraditions pursuant to the conventions is not easy to find, although most
33. See p. 295 below on the exceptional factors in the Lockerbie case.
34. See Lambert, Terrorism and Hostages in International Law, Cambridge, 1990, pp. 163–5.
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states seem to prefer deportation or expulsion, since they are usually quicker.
The political exception
The ‘political exception’ must be clearly distinguished from provisions in the conventions that
mutual legal assistance or extradition may be refused if it has been requested for the purpose of
prosecuting or persecuting the person for his political opinions. The political exception dates from
the nineteenth century and is a provision in extradition treaties or domestic law that prohibits
extradition for so-called political offences: those committed for political purposes or motives.
35
Given that many terrorist crimes are committed for some political purpose, and the earlier
conventions do not prohibit the political exception, this can be an obstacle to extradition for a
terrorist offence. However, the more recent Bombings Convention 1997 (Article 11) and the
Financing Convention 1999 (Article 14) exclude the political exception, as do some extradition
treaties in respect of offences under the conventions.
36
Fiscal offences
Article 13 of the Financing Convention 1999 provides, in effect for the avoidance of doubt, that for
the purposes of requests for extradition or mutual legal assistance none of the financing offences
shall be regarded as a fiscal offence; and requests cannot be refused on the sole ground that they
concern a fiscal offence. In this context, ‘fiscal’ means relating to money or public revenue. Tax
evasion is a typical fiscal offence, although it cannot usually be the subject of mutual legal assistance
or extradition.
37
Armed conflicts
Article 12 of the Hostages Convention 1979 excludes hostage-taking which is a ‘grave breach’ of
the Geneva Conventions and Additional Protocol ,
35. The matter is complicated: see Oppenheim, pp. 962–72 and p. 266 above.
36. Article 7 of the European Convention on the Suppression of Terrorism 1977 (n. 28 above) excludes
terrorist offences from the political exception. See Lambert, Terrorism and Hostages in International Law,
Cambridge, 1990, pp. 234–5.
37. The provision was drawn from Article 1 of the Additional Protocol to the CoE Convention on Mutual
Assistance in Criminal Matters, 1496 UNTS 350 (No. 6841); ILM (1978) 801; UKTS (1992) 24.
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for which the parties to those conventions have an obligation to prosecute or extradite.
38
The
tortuous language of Article 12 has led some writers into wrongly believing that the Article does not
apply to NLMs. It does.
39
All the Article means is that a person can be prosecuted for a war crime
rather than a terrorist act. Although the Protocol applies to activities of NLMs, that does not
legitimise hostage-taking by NLMs, only that it has to be dealt with under the Geneva regime.
Article 19(2) of the Bombings Convention 1997 also contains convoluted language that has the
effect of excluding from the scope of the Convention the activities of armed forces during an armed
conflict or otherwise on duty (know colloquially by the transatlantic term ‘military carve-out’).
(Article 2(1)(b) of the Financing Convention 1997 has a similar exclusion.) This is necessary since
acts, such as causing explosions, are frequently done during an armed conflict, and any abuse of the
law of armed conflict can be dealt with under that law.
Criminal liability of corporations
Article 5 of the Financing Convention 1999 is new to terrorism conventions. Although under the
other conventions a responsible official of a legal person, such as a company, could as part of his
duties commit an offence, the company itself could not. But that would not have been enough for the
Financing Convention, since offences under it are most likely to be committed by banks and other
financial institutions. When a transfer of money is done with the help of a bank official who knows
it is destined for terrorists, it is important that the bank should also be held accountable. The bank
does not have to benefit from the offence, although liability is dependent on a person ‘responsible
for the management or control’ of the entity having ‘in that capacity’ committed a financing
offence.
40
Thus, a relatively senior manager, not a clerk (today every bank clerk is called a
manager), must have committed the offence. If he used the bank’s computer system to transfer the
money, even though he was not authorised to do so, the bank would commit an offence. This is
because the convicted person would have done the act by virtue of his employment with the
38. 75 UNTS 3 (Nos. 970–3); UKTS (1958) 39 and 1125 UNTS 3 (No. 17512); ILM (1977) 1391; UKTS
(1999) 29–30.
39. See Lambert, Terrorism and Hostages in International Law, Cambridge, 1990, pp. 263–98.
40. See pp. 410-12 below on a similar point on state responsibility.
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bank, which gave him access to the system. It could not be said to be a private act.
41
In many legal systems, when legislation makes it an offence for a ‘person’ to do an act, this
includes a legal person, unless a contrary intention appears. A contrary intention can be inferred
where the nature of the act, such as bigamy, could not be committed by a controlling officer in the
course of business. The concept of the vicarious liability of corporations is developing in both
common law and civil law systems, but naturally varies from state to state. Some legal systems do
not enable legal entities to be made criminally liable at all. Article 5 therefore limits the obligation to
legal entities located in the territory of a party or organised under its laws (i.e. carrying on business
or incorporated there), and thus makes it clear that making a ‘legal entity’ liable must be done in
accordance with the domestic legal principles of each party. And each party is given discretion as to
the nature of the liability – criminal, civil or administrative.
Punishment
The parties must make the defined offences criminal offences in their domestic law and impose
penalties that take into account the ‘grave nature’ of the offences.
Protection of the rights of the alleged offender and cooperation by the parties
The conventions require protection of the human rights of the alleged offender after arrest and
during any legal proceedings, and for cooperation and mutual assistance between parties in
connection with investigations, the provision of evidence and the prevention of offences.
Refugees
Article 1F(c) of the Refugee Convention 1951
42
provides that, if there are ‘serious reasons’ for
considering that a person is ‘guilty of acts contrary to the purposes and principles of the United
Nations’, he is not entitled to
41. See A. Aust, ‘Counter-Terrorism – A New Approach’ (2001) Max Planck YB of UN Law 285–306.
42. 189 UNTS 137 (No. 2545) and 606 UNTS 267 (No. 8791); UKTS (1954) 39 and UKTS (1969) 15.
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refugee status. On 17 December 1996, the UN General Assembly adopted a Declaration that
terrorism is contrary to the purposes and principles of the United Nations.
43
Nuclear terrorism convention
The scope of the Nuclear Convention 1979 being limited, it was felt this might be remedied by the
conclusion of a comprehensive treaty on nuclear terrorism. Although the negotiations in the UN
Sixth Committee were almost completed in 1998, they were held up by the reluctance of some states
to consider an exemption for the activities of the armed forces of nuclear weapon states. Finally, on
13 April 2005, the UN General Assembly adopted the International Convention for the Suppression
of Nuclear Terrorism (A/59/766).
Comprehensive Convention on International Terrorism
This ambitious proposal, discussed at the United Nations since 2001, attempts to consolidate all the
previous conventions and to fill in gaps. Progress has been delayed by the insistence of some states
on an exemption for NLMs even where their activities would not be lawful under the law of armed
conflict, and would thus take them outside both the conventions and the law of armed conflict.
Security Council
44
For over thirty years the United Nations Security Council has been concerned about terrorism. In the
Lockerbie resolutions,
45
and repeatedly later, the Council has determined that terrorism is a threat to
international peace and security, most famously in Resolution 1368 (2001) following the 11
September 2001 attacks in the United States.
The first Chapter measure
46
on terrorism was directed at Iraq. After its invasion of Kuwait on 2
August 1990, many nationals of Kuwait and other states were held in Kuwait, some later being taken
to Baghdad where they were held as ‘human shields’, that is hostages. Resolution 674 (1990)
demanded their release. Following the liberation of Kuwait, the ceasefire
43. A/RES/51/210; ILM (1996) 1188. See also pp. 192-3 above.
44. A. Aust, ‘The Security Council and International Criminal Law’ (2002) NYIL 23–46.
45. See n. 48 below.
46. On Chapter , see p. 214 above.
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Resolution 687 (1990) recalled the Hostages Convention, categorised all acts of hostage-taking as
manifestations of international terrorism, and deplored the previous threats by Iraq to make use of
terrorism abroad. It required Iraq to confirm that it would not commit or support any act of
international terrorism, not allow any terrorist organisation to operate within Iraq, and to condemn
and renounce all acts of terrorism. Iraq agreed.
Lockerbie
When Pan Am flight 103 was sabotaged over Lockerbie in Scotland on 21 December 1988, Libya,
the United Kingdom and the United States were (and still are) parties to the Montreal Convention
1971, which now has 180 parties. But when in 1991 charges of murder were laid against two
Libyans, in order to get them to trial the United Kingdom and the United States did not invoke the
Convention. Since they had been charged as having acted on behalf of the Libyan intelligence
services, the alleged complicity of the Libyan Government (with its long, well-documented
involvement in terrorism) meant that trial in a Libyan court was unthinkable. Yet, since Libyan law
prohibits extradition of Libyan nationals, if an extradition request had been made to Libya under the
Convention it would have been obliged to submit the case to its prosecuting authorities.
47
Therefore,
a demand was made for the ‘surrender’ of the two accused for trial in a Scottish or US court. The
Security Council adopted a series of resolutions demanding that Libya hand over the two accused for
trial in a Scottish or US court, and imposing sanctions.
48
Following Resolution 1192 (1998), the
accused were eventually handed over for trial by a Scottish court, albeit sitting in the Netherlands.
49
In 2001, one of the accused, Megrahi, was convicted and sentenced to life imprisonment in
Scotland.
50
47. The Libyan pleadings to the International Court of Justice in the proceedings brought by it in 1992
against the UK and the US in a vain attempt to stop the sanctions, claimed that, by their actions in the UN
Security Council, the respondent states had denied Libya its right under the Montreal Convention to
prosecute the accused. The cases also raised an issue of fundamental importance about the respective
powers of the ICJ and the Security Council (see p. 460 below). In September 2003, the cases were
withdrawn by consent.
48. Res. 731 (1992), 748 (1992), 883 (1993) and 1192 (1998).
49. For the long history of how the accused came to be so tried, see A. Aust, ‘Lockerbie: The Other Case’
(2001) ICLQ 278 et seq.
50. See ILM (2001) 581–613 (judgment).